The Madhya Pradesh High Court has allowed a criminal appeal and set aside the conviction of the appellant under Section 363 IPC, holding that where a minor prosecutrix leaves her parental home of her own free will and voluntarily accompanies the accused without any force, enticement or allurement on his part, the essential ingredient of ‘taking’ or ‘enticing’ out of the keeping of the lawful guardian under Section 361 IPC is not made out. Justice Pradeep Mittal, in the judgment delivered on 29th April, 2026 in Criminal Appeal No. 2321 of 2013 titled Ravi Das Gupta versus State of Madhya Pradesh, acquitted the appellant who had been convicted by the trial court and sentenced to three years’ rigorous imprisonment with a fine of Rs.1,000.
The prosecution case was that on 15.03.2013 the prosecutrix (PW-5), then aged about 15 years and 6 months, went missing from her house. A missing person report was lodged and subsequently an FIR under Sections 363 and 366 IPC was registered against the appellant on the suspicion that he had also gone missing on the same day. The prosecutrix returned home on her own on 20.03.2013. After investigation, charge-sheet was filed and the case was committed to the Court of Sessions. The trial court framed charges under Sections 363 and 366 IPC. The appellant denied the allegations and claimed that the prosecutrix was a consenting party and he had been falsely implicated.
In her deposition before the trial court, the prosecutrix categorically stated that on 15.03.2013 at about 4:00 AM she left her house on her own after informing her mother, went to the field of the appellant and thereafter travelled with him to Badera, Maihar, Jabalpur and finally to Mumbai. She stated that the appellant had told her he would marry her but did not commit any wrongful act against her. In cross-examination she affirmed that the appellant used no force, did not take her away by enticement or allurement, did not mislead her regarding marriage, and that she accompanied him of her own free will and stayed with him for five to six days voluntarily. Her mother also did not make any allegation against the appellant. The trial court, on appreciation of evidence, acquitted the appellant of the charge under Section 366 IPC as it found that the prosecutrix had gone with the appellant entirely of her own will and consent, no wrongful act or sexual intercourse was committed, and no inducement or enticement was given. However, the trial court convicted him under Section 363 IPC solely on the ground that the prosecutrix was a minor whose consent was legally irrelevant under Section 361 IPC.
The High Court observed that while the consent of a minor is indeed irrelevant under Section 361 IPC, the prosecution is still required to independently prove the essential ingredient that the accused ‘took’ or ‘enticed’ the minor out of the keeping of the lawful guardian. The word ‘takes’ postulates some active and positive conduct on the part of the accused — a voluntary and deliberate act resulting in the removal of the minor from the guardian’s custody. Mere passive accompaniment or acquiescence where the minor herself is the moving party does not amount to ‘taking’ within the meaning of the section. The Court noted that the prosecutrix’s unimpeached testimony clearly established that she left home on her own initiative without any force, coercion, enticement or allurement by the appellant. The trial court’s own findings in acquitting the appellant under Section 366 IPC were consistent with this evidence, yet it erroneously convicted him under Section 363 IPC by conflating the irrelevance of the minor’s consent with the complete absence of the element of ‘taking’ or ‘enticing’.
The High Court held that the prosecution utterly failed to establish the foundational ingredient of the offence under Section 361 IPC. The conviction under Section 363 IPC was not supported by the evidence on record and was, in fact, contrary to the findings of fact recorded by the trial court itself. The appeal was accordingly allowed, the judgment and order dated 20.08.2013 passed by the 2nd Additional District Judge, Maihar, District Satna in Sessions Trial No. 134/2013 was set aside, and the appellant was acquitted of the charge under Section 363 IPC. He was directed to be released forthwith if in custody and not required in any other case, and the fine, if deposited, was ordered to be refunded.
Case Details:
Title: Ravi Das Gupta Versus The State of Madhya Pradesh
Citation: 2026:MPHC:JBP:3394
Case No.: Criminal Appeal No. 2321 of 2013
Coram: Justice Pradeep Mittal
Date of Judgment: 29th April, 2026
Click HERE for full Judgment.
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